This may be helpful

http://www.adviceguide.org.uk/scotland/consumer_s/ph...

"If the statement made by the sales person is false and it influenced your decision to buy the service, this is called misrepresentation. If this is the case, you can cancel your contract without charges and may be able to take legal action for compensation. A false statement which influenced your decision to enter into a contract is also an example of an unfair commercial practice. If you've been misled, you can take action under the Consumer Protection from Unfair Trading Regulations 2008. "

In reply to a post by TheEulerID:

That's not true. It is fundamental to consumer law in this country that what statements made by the seller's agents are fundamental parts of the contract. They cannot simply be undermined by contradictory terms embedded deep in the contract. Indeed, we've had the whole issue with banks being help liable for the miss-selling of PPI.

What is your source for this remarkable statement? Your statement potentially privileges pre-contractual statements, which might have no legal force whatsoever, over the express terms of the contract.

As has already been said several times, there are specific legal requirements to do with the selling of regulated financial products like insurance. These requirements and their associated remedies do not apply to general contracts, so mention of PPI is unhelpful.


The terms of the contract are what a reasonable independent person would conclude the accepting party had agreed to be bound to when entering into a contract by accepting the other party's offer (Smith v Hughes (1871) LR 6 QB 597).


Pre-contractual statements might be an invitation to negotiate with no legal force, such as a price displayed on an item in a shop - these known as an invitation to treat.

Pre-contractual statements might be a representation that induced you to enter into the contract which, in some cases, will give rise to remedies under the law of misrepresentation. Misrepresentation is not as simple as "you told me that, I relied on it, so you must cancel the contract".


Ultimately, it is only those terms expressly or implicitly included in the contract that have any contractual force. There is a fairly rich vein of contract law about what terms are incorporated into a contract.


As I said in my earlier reply, exclusion clauses may or may not be valid - that's a very rich area of contract law. If contradictory terms exist, it would ultimately be for a court to determine the true position, for which the starting point is Smith v Hughes.


The link you posted about misrepresentation is from the Scottish part of Citizen's Advice's web site. I'm assuming the law of England and Wales, which is the subject of my legal training. Scots law is different in various ways.

In reply to a post by TheEulerID:

"If the statement made by the sales person is false and it influenced your decision to buy the service, this is called misrepresentation. If this is the case, you can cancel your contract without charges and may be able to take legal action for compensation. A false statement which influenced your decision to enter into a contract is also an example of an unfair commercial practice. If you've been misled, you can take action under the Consumer Protection from Unfair Trading Regulations 2008. "

The first part of this statement is broadly correct, but the law on misrepresentation contains many detailed stipulations. For example, the original poster discovered the problem 12 months ago, which may well amount to too much of a delay between discovering any misrepresentation and seeking rescission (reversal of the contract, including a refund of charges) for rescission to be available.

As I've already said, I'm unclear whether the statement about no oversubscription is a representation or a term of any contract.


I find the statement "you can take action under the Consumer Protection from Unfair Trading Regulations 2008" puzzling. CPUTR 2008 creates various criminal offences, but these are typically for Trading Standards to pursue. The individual consumer is unlikely to bring a private prosecution for breach of CPUTR 2008, especially as the offences typically relate to groups of consumers, not individuals.

Edited by deleted (Wed 26-Nov-14 16:25:19)

The criminal stuff is as you say. More to do with trading standards. However, I don't think there's any issue about the time it took about any obscure clause to start becoming evident. Fundamentally it comes down as to whether the purchase decision was made on a misrepresentation. I think if it can be shown that this was material in the decision, then the contract has been broken. In this case I think it's moot, as it seems issues arose quite soon. Also, it can easily be argued the supplier was given ample opportunities to fix it.

nb. that's not to say whether it's worth pursuing or not. It's clearly a small claims court type issue which means the downside is known against which you can balance getting most, if not all or 12 months' payments refunded plus any costs of the case.

Edited by deleted (Wed 26-Nov-14 16:38:06)

In reply to a post by TheEulerID:

The criminal stuff is as you say. More to do with trading standards. However, I don't think there's any issue about the time it took about any obscure clause to start becoming evident. Fundamentally it comes down as to whether the purchase decision was made on a misrepresentation. I think if it can be shown that this was material in the decision, then the contract has been broken. In this case I think it's moot, as it seems issues arose quite soon.

You're still mixing up two different fundamental concepts: breach of contract and misrepresentation. Indeed, you appear to be trying to do law by assertion - law isn't a matter of logic.


Misrepresentation is about statements inducing a party to enter into the contract that do not form part of the contract.

Breach of contract is about breaking an express or implied term of the contract.


Rescission on the grounds of misrepresentation is an equitable remedy (the court doing what is just) based on the circumstances in which the contract was entered into.

Undue delay in seeking rescission for misrepresentation is well recognised in case law as grounds to deny rescission. See, for example, Leaf v International Galleries [1950] 2 KB 85, where a buyer of a fake Constable painting was denied rescission because of a delay of five years - the court felt in the circumstances, maybe a little optimistically, that a few days was sufficient to inspect the painting and establish the misrepresentation).

As the original poster continued to pay for and use the service after any misrepresentation on speed became reasonably apparent, a court may determine these actions amounted to implicit affirmation of the contract. Once a contract is affirmed, the right to rescission has been permanently lost.


Even in the small claims track of the County Court, you have to argue your case based on legal and/or equitable rights, not "this seems wrong and I want recompense".

The original poster is likely to be better off putting their complaint in writing to the provider, then using the independent dispute resolution provider if they are not happy with the provider's response. The dispute resolution provider has reasonably wide discretion to do what seems right.

OK - if you prefer it, the initial contract was null and void because the conditions were incompatible with what the salesperson said.

In any event, there's another point. When I did a bit of contract law at college (admittedly 35 years ago) , it was made plain that a contract does not have to be fully, or even partially written. Contract terms can be verbal too, and that includes any promises judgement) made by anybody who you can reasonably expect to have that authority (to what that extent low grade sales staff are included is, of course, subject to . Also, unfair terms are null and void too. So you can have a contract, yet certain conditions are deemed unfair. In this case. Is something is sold as having low contention levels, then any clause in the fine print that contradicts this can been deemed ineffective.

In any event, it's irrelevant to the outcome. Whether it's breach of the terms (implied or explicit), or misrepresentation, compensation may be due (as the citizen's advice bureau says). There is no requirement for there to have been an actual conviction for misrepresentation. To invite that sort of action would probably require something rather more significant that this case.

As far as this particular case goes, there is very possibly something that can be taken to a small claims court, but whether or not its worth the trouble, and quite what evidence would have to be provided is something else entirely.

In reply to a post by TheEulerID:

OK - if you prefer it, the initial contract was null and void because the conditions were incompatible with what the salesperson said.

That's still not correct. In some situations, misrepresentation prior to creation of a contract gives grounds for the equitable remedy of rescission, where a contract that may well be perfectly valid is unwound entirely because the court feels that it would be unjust to hold the party to a contract they were misled into entering.

Describing the contract as null and void would imply no contract was ever formed, which is unlikely to be the case here.

In reply to a post by TheEulerID:

In any event, there's another point. When I did a bit of contract law at college (admittedly 35 years ago) , it was made plain that a contract does not have to be fully, or even partially written. Contract terms can be verbal too, and that includes any promises judgement) made by anybody who you can reasonably expect to have that authority (to what that extent low grade sales staff are included is, of course, subject to . Also, unfair terms are null and void too. So you can have a contract, yet certain conditions are deemed unfair. In this case. Is something is sold as having low contention levels, then any clause in the fine print that contradicts this can been deemed ineffective.

Contracts can indeed be partly or wholly verbal. In some circumstances, you can even grant a legal lease on a property verbally.

Any promises made prior to formation of the contract might be incorporated into the contract, might be a representation inducing someone to enter into the contract (which, if a misrepresentation, gives rise to remedies), or might not speak to the contract at all. As I said in an earlier reply, the terms of the contract are what the parties agreed on, viewed from an independent objective standpoint (Smith v Hughes).

Unfair terms are not ipso facto null and void. A court will not grant you a remedy just because you made a bad bargain. In some cases, an unfair term might be rendered unenforceable by legislation (notably the Unfair Terms in Consumer Contracts Regulations 1999) or by case law (for example if sufficient attention was not drawn to a particularly onerous term - Interfoto Picture Library v Stiletto Visual Programmes [1989] QB 433). However, all this is a long way from "this contention ratio is awful - I have the right to leave the contract".

In reply to a post by TheEulerID:

In any event, it's irrelevant to the outcome. Whether it's breach of the terms (implied or explicit), or misrepresentation, compensation may be due (as the citizen's advice bureau says). There is no requirement for there to have been an actual conviction for misrepresentation. To invite that sort of action would probably require something rather more significant that this case.

The precise scenario is crucial in determining the remedies available. For example, in most cases damages for misrepresentation are awarded on tortious principles rather than contractual principles, which would usually preclude an award of compensation without an ability to demonstrate actual loss.

In reply to a post by TheEulerID:

As far as this particular case goes, there is very possibly something that can be taken to a small claims court, but whether or not its worth the trouble, and quite what evidence would have to be provided is something else entirely.

As I said in an earlier reply, there are other steps that can be be taken before going to court. Indeed, it is a requirement to take reasonable steps to settle a dispute before recourse to the courts (CPR 1.3 and 1.4).

While it may be very entertaining to discuss the finer details of consumer law, this is largely a red herring. Under the regulatory provisions of the Telecommunications Act every CP (Communications Provider) providing services to consumers is required to subscribe to an Independent Dispute Resolution (IDR) mechanism.

You need to go through a formal dispute process (details available on the Ofcom website) and if your dispute is not resolved by the CP then you can take it to IDR. This will not cost you anything but it will cost the CP quite a lot, so typically they don't want to pursue the matter. You are unlikely to get much compensation under any legal procedure - at most a partial or full refund of your subscription fees - but you are likely to be released from your contract without any further obligation.

It is much better to pursue this route than court litigation - even in the small claims court.

In reply to a post by gah789:

While it may be very entertaining to discuss the finer details of consumer law, this is largely a red herring. Under the regulatory provisions of the Telecommunications Act every CP (Communications Provider) providing services to consumers is required to subscribe to an Independent Dispute Resolution (IDR) mechanism.

You need to go through a formal dispute process (details available on the Ofcom website) and if your dispute is not resolved by the CP then you can take it to IDR. This will not cost you anything but it will cost the CP quite a lot, so typically they don't want to pursue the matter. You are unlikely to get much compensation under any legal procedure - at most a partial or full refund of your subscription fees - but you are likely to be released from your contract without any further obligation.

It is much better to pursue this route than court litigation - even in the small claims court.

I suggested a complaint and, if necessary, dispute resolution further up the thread and agree wholeheartedly with your conclusions.

A court is unlikely to look favourably on a claim being brought without exhausting all other remedies.


I tried very hard to provide a concise summary of the legal position in the hope that this post made it clear how unwise it would be to take legal action. The correct route is to complain and, if necessary, use the dispute resolution process where the IDR provider has some discretion to do what is just.

I've cited authorities for my legal commentary that anyone with a modest amount of legal experience should be able to check.

Thanks for your feedback, as way of an update - you're right there's absolutely no point in taking a legal route, despite the fact they wrote and and accepted I had been 'misled' on the phone. They have added three months supply to compensate for this.

He made the point that with ANY ISP speeds will be affected by usage at certain times. This I understand, but my complaint is that from 4pm Mon-Friday and ALL weekends, these speeds aren't just reduced, they are non existent. (20-50 kbps) and unusable.

So, here comes the second part of the story!

I cancelled the satellite service and ordered a 0.5 - 0.75mpbs BT ADSL. To give me the greatest chance of achieving a usable product I paid £130 for the master socket to be moved to the most suitable spot. Guess what, after 6 hours of an engineer doing his best, the ADSL product didn't work either. He said I'm too far (8m!) from the exchange for a stable connection. So now I'm in a row with BT too, as I'm not happy with paying the fee to move the MS.

So the upshot of ALL this... I now have no BB at all!